Susan Estrich: Liberal Media?

By

Published June 19, 2008

| FoxNews.com

It was only two weeks ago that I had the pleasure of moderating the annual debate between Chief Judge Alex Kozinski and Judge Stephen Reinhardt, both of the United States Court of Appeals for the Ninth Circuit, before the Lawyers Division of the local Jewish Federation.

I say pleasure for many reasons: I am a strong supporter of the Federation, have enormous respect for both judges, one liberal and one conservative, and have long believed that it is important for judges to play an active role in public discourse on legal issues. Obviously, it isn’t appropriate for judges to comment about the cases that are currently before them; but just because someone wears black robes shouldn’t mean that they are not free to offer an opinion on broader issues of legal construction, constitutional interpretation or the role of the courts.

Judge Kozinski, like Judge Richard Posner of the Seventh Circuit, has written broadly on an arrray of topics, both legal and non-legal, and is widely considered one of the smartest and most articulate members of the federal bench. I share that opinion.

So it was that a few days after our debate, I was fairly horrified to find Judge Kozinski at the center of what seemed to be a fairly ridiculous firestorm about pornography on his home computer server. Opening statements had just been completed in what I frankly saw as a truly stupid prosecution by the Justice Department of a 57-year-old Los Angeles man who makes and sells videotapes featuring defecation and bestiality from his home in the Hollywood Hills. The most amazing part of the case, in my book anyway, is that he was selling 1000 tapes a month, at $30 dollars a pop no less, some of which reportedly featured the portly, middle aged defendant himself.

Who would pay to watch this stuff? And why should the Justice Department, with terrorists and drug kingpins to care about, waste its time and our money on a middle-aged porn star/king who was the first to admit that he himself wouldn’t want to have to watch six hours of this garbage, as the jury was going to do?

Judge Kozinski was presiding over the trial, which is not something appellate judges usually do, as part of a special program in which appellate judges rotate to the trial courts. It was, I suppose, a lucky break for the defendant: while Judge Kozinski, who was originally appointed to the bench by President Reagan, is considered to be a judicial “conservative,” he also has a reputation as a staunch supporter of first amendment freedoms, not only in his writings and opinions, but also because of his successful efforts to force the Administrative Office of U.S. Courts to remove the filters that they had placed on federal judges’ computers without the judges even knowing it.

On the very day opening statements were delivered, after the jurors who were going to have to watch this garbage had been selected and screened, the Los Angeles Times published a story detailing the contents of the judge’s home computer server, including depictions of naked women painted as cows and bestiality, which it claimed that the Judge had defended as “funny,” saying he wasn’t aware that the public had access to his server and would immediately move to limit such access.

The story got a lot of attention, for obvious reasons; the fact that the judge who was presiding over the first obscenity trial to be brought in Southern California by a Justice Department task force created in 2005 had similar stuff on his own website was irresistable to the media and the talk-show culture, leaving many who addressed it confusing the middle-aged, portly Jewish man who was the defendant with the middle-aged portly Jewish man who was the Judge. It didn’t help that they are both the same age.

The judge first delayed the trial in order to give the Justice Department time to decide whether it wished to seek to disqualify him and then, as the furor continued to grow, declared a mistrial and requested an investigation of his own actions.

Maybe you have to see naked women painted as cows yourself to appreciate the humor. It doesn’t sound funny to me, but that’s not the point. It’s also not obscene, by any definition. There was no bestiality on the judge’s Web site: the supposed bestiality was a video of a guy trying to find a place to relieve himself in the presence of an aroused farm animal. Juvenile humor, but hardly the stuff of a federal case. If everyone who ever looked at this kind of stuff, or shared it with friends and family, were disqualified from sitting as judge or juror in an obscenity case, we’d all be in trouble. As I say, it was a stupid firestorm from the get-go, which doesn’t mean that it wasn’t embarrassing for the Judge and his family.

But what has come out since is more troubling than the original accusations. Not only did the Los Angeles Times make a mountain out of a molehill, wrongly characterizing a popular and much-viewed piece of bathroom humor (literally) as bestiality, but it failed to reveal that the source of the story was an angry litigant, and that he had made them aware of it months earlier. Consider the source, my mother always used to say, and she didn’t run a newspaper. This week, Judge Kozinski’s wife of thirty years wrote an email to a popular local blogger, Patterico.com, defending her husband and, in the course of her defense, calling into question the fairness of the Los Angeles Times.

It has now been confirmed (by the man himself) that the source for the Los Angeles Times story, not disclosed in the story itself, was Cyrus Sanai, a local lawyer whose mother was party to a very contentious divorce in the state courts of Washington, which her son believes was improperly handled by those courts; he has since begun a crusade to attack what he sees as the corruption of the Washington state judiciary.

When he failed in his efforts to reverse the judgment in the state courts, he initiated a federal lawsuit, which resulted in an order from Judge Thomas Zilly enjoining future filings by Sanai: “Plaintiffs’ conduct in this litigation,” Judge Zilly found, “has been an indescribable abuse of the legal process, unlike anything this Judge has experienced in more than 17 years on the bench and 26 years in private practice: outrageous, disrespectful, and in bad faith.” The Ninth Circuit, in a decision in which Judge Kozinski did not participate, upheld the dismissal of Sanai’s complaint.

So why is Sanai out to get Kozinski? Because the Judge wrote a column for a San Francisco newspaper defending the panel’s decision. Not only did the Los Angeles Times fail to disclose that the source of its information about the Judge’s home server was a much criticized disgruntled litigant, but it apparently sat on the story for months, timing its publication to the opening statements in the obscenity case. If it was a story, it should have been a story three months ago. If it wasn’t news, which is certainly my view, the obscenity case didn’t make it news. And if you were going to wait, why wait until the jury had already been selected, with the result that everyone’s time was completely wasted?

Mr. Sanai has now responded to the criticism, but in the process, raised further questions about the Los Angeles Times’ reporting. He admits that he was the source of the story, and makes clear that it was some months ago that he accessed the Judge’s website, and provided information to the local paper of record. What’s worse, he himself says that his criticism of Judge Kozinski is part of a broader “litigation strategy” to address his complaints about the adjudication of his parents’ divorce, and that he himself didn’t really take issue with the pornography as much as he did the fact that the Judge’s column defending his colleagues was also on the server (Mr. Sanai also claims that there were mp3 files which the Judge was sharing in violation of copyright laws, though no one else has ever confirmed this).

Would the Los Angeles Times have run a similar story if it found pictures of naked women/cows on the home server of the liberal Judge Reinhardt?

I have seen enough of liberal politicians treated badly by the supposed liberal media to question the willingness of conservatives to ascribe ideological bias to the media, but in this case, one has to wonder. Federal judges cannot be blamed, however, if the lesson they take from this episode is that no good deed goes unpunished. Judge Kozinski’s “sin,” in the eyes of the man who attacked him, was not his taste in humor but his willingness to speak out publicly about legal issues, in this case, the lawsuit brought by Mr. Sanai, and the abuse of process it involved.

That willingness is precisely what makes Judge Kozinski a unique treasure in the federal judiciary. Instead of encouraging others to do the same, which is what the so-called liberal media should be doing it, the sloppy if not vicious reporting of the Los Angeles Times is sure to encourage just the opposite. The first amendment is not well served. I can only hope that Judge Kozinski doesn’t decide to take a pass on the Federation debate, and others like it, next year as a result.

Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first female president of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published "Soulless," "The Case for Hillary Clinton," "How to Get Into Law School," "Sex & Power," "Real Rape," "Getting Away with Murder: How Politics Is Destroying the Criminal Justice System" and "Making the Case for Yourself: A Diet Book for Smart Women."

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the "Blue Streak" column for FOXNews.com.

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